Cynthia Diane Yelling v. St. Vincent's Health System

USCA11 Case: 21-10017    Document: 46-1      Date Filed: 10/05/2023   Page: 1 of 33




                                                              [PUBLISH]
                                    In the
                 United States Court of Appeals
                         For the Eleventh Circuit

                           ____________________

                                 No. 21-10017
                           ____________________

        CYNTHIA DIANE YELLING,
                                                       Plaintiff-Appellant,
        versus
        ST. VINCENT’S HEALTH SYSTEM,


                                                     Defendant-Appellee.
                           ____________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                      D.C. Docket No. 2:17-cv-01607-SGC
                           ____________________
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        2                         Opinion of the Court                     21-10017

        Before BRANCH and BRASHER, Circuit Judges, and WINSOR,∗ District
        Judge.
        PER CURIAM:
                Cynthia Yelling worked as a hospital nurse for St. Vincent’s
        Health System. After St. Vincent’s fired her, Yelling sued, alleging
        race discrimination (including hostile work environment) and re-
        taliation under Title VII and 

. The district court
        granted summary judgment for St. Vincent’s, 1 and Yelling ap-
        pealed.
               On appeal, Yelling contends she presented sufficient evi-
        dence to survive summary judgment as to all claims. She also con-
        tends that after Bostock v. Clayton County, 

 (2020), it
        is not appropriate to apply the McDonnell Douglas framework to a
        “mixed-motive” retaliation claim. After careful review, and with
        the benefit of oral argument, we conclude that (i) Yelling’s hostile
        work environment claim fails because there is no evidence of se-
        vere or pervasive harassment; (ii) Bostock did nothing to undermine
        application of McDonnell Douglas to retaliation claims because but-
        for causation still applies; (iii) Yelling’s retaliation claim cannot sur-
        vive—either under McDonnell Douglas or otherwise; and (iv)



        ∗ Honorable Allen Winsor, United States District Judge for the Northern Dis-
        trict of Florida, sitting by designation.
        1 With the parties’ consent, a magistrate judge presided over the case and is-
        sued the order on appeal. See 

(c).
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        21-10017                Opinion of the Court                            3

        Yelling’s disparate-treatment claim fails because there is no evi-
        dence that race played a role in her termination. We therefore af-
        firm.
                                         I.

                We review a grant of summary judgment de novo, viewing
        the evidence in the light most favorable to the nonmoving party.
        Hornsby-Culpepper v. Ware, 

 (11th Cir. 2018) (cit-
        ing Battle v. Bd. of Regents for the State of Ga., 

 (11th
        Cir. 2006)). “Summary judgment is proper if the evidence shows
        ‘that there is no genuine dispute as to any material fact and the mo-
        vant is entitled to judgment as a matter of law.’” 

 (quoting Fed.
        R. Civ. P. 56(a)).
                Because we resolve all factual disputes in the nonmovant’s
        favor, the “‘facts,’ as accepted at the summary judgment stage of
        the proceedings, may not be the ‘actual’ facts of the case.” Priester
        v. City of Riviera Beach, 

, 925 n.3 (11th Cir. 2000). What
        follows are the facts as accepted for summary judgment purposes.
                                         II.

              In 2010, Yelling began work as a pool nurse in St. Vincent’s
        Birmingham hospital. Pool nurses were not permanently assigned
        to any hospital unit; instead, they worked throughout the hospital
        as needed. Yelling later secured a permanent registered nurse as-
        signment in St. Vincent’s Clinical Decision Unit (“CDU”). The
        CDU cared for patients who needed general observation, lab work,
        or other tests.
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        4                     Opinion of the Court                 21-10017

               Yelling initially worked weekday shifts in the CDU, but she
        switched to weekend shifts in 2013. Her supervisors—charge nurse
        Casi Dubose and the patient care supervisor—sometimes had her
        work extra shifts during the week. Yelling would also volunteer to
        serve as a relief charge nurse when the CDU needed one. Dubose
        usually selected white pool nurses for those assignments, but she
        did choose Yelling—who is black—a few times.
               During these first few years, things went smoothly. Dubose
        evaluated Yelling’s job performance and reported that Yelling gen-
        erally met expectations. But the employment relationship began to
        sour in 2015.
               In March of that year, President Obama visited Lawson State
        Community College—a predominantly black school Yelling had
        attended. While nurses were chatting one day at the nurse station,
        charge nurse Jimmy Wilhite remarked, “What is he doing coming
        here? Is he handing out food stamps?”
              After that, as Yelling explains, the CDU “got really kind of
        heated with . . . racially disparaging comments.” Yelling overheard
        white pool nurse Sandy Sheffield say, “Michelle Obama looks like
        a monkey” and that the “President is a piece of shit.” White staffer
        Tiffany Hardy made similar remarks. So too did white weekday
        nurse Linda Powell, who said President Obama was “stupid,” was
        the “worst president ever,” and “needs to go back to Africa.”
               Yelling also heard these three coworkers refer to black pa-
        tients as “boy” or “girl,” “crack heads,” “welfare queens,” or
        “ghetto fabulous.” And three other white coworkers—Tonya
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        21-10017               Opinion of the Court                          5

        Larimore, Robin Calvert, and Jennifer Laroe—talked at the nurse
        station about their “redneck status,” owning guns, and being “con-
        federate flag flyers.”
               Yelling does not remember having any racial insult or slur
        directed at her personally. Still, Yelling reported the comments as
        offensive to the house supervisor on June 14, 2015. She also com-
        plained that Dubose maintained a “quota” of only staffing one
        black nurse per shift. St. Vincent’s did not investigate Yelling’s com-
        plaints or discipline any CDU staff for racist comments or staffing
        practices.
              The weekend after Yelling complained, three coworkers re-
        ported that she left the CDU without explanation, acted lethargic
        and unsteady upon returning, and then fell asleep at the nurse sta-
        tion. When Dubose learned of Yelling’s reported behavior that
        same day, she ordered the house supervisor to suspend Yelling
        pending a drug test. Yelling’s suspension lasted only through the
        next weekend. The drug test came back negative, and St. Vincent’s
        paid Yelling for the time she was suspended.
               Before Yelling returned from her suspension, Dubose
        reached out to other CDU employees. She told each one about ex-
        pected employee behavior, asked them to document any future is-
        sues with other staff, and emphasized the importance of wearing
        trackers. (St. Vincent’s required CDU nurses to wear devices that
        tracked their physical locations throughout each day.)
              CDU employees began reporting Yelling for not following
        doctors’ patient-care orders and not respecting patients’ personal
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        6                      Opinion of the Court                  21-10017

        boundaries. They specifically reported that Yelling disconnected a
        patient’s IV, made that patient uncomfortable by praying with her
        in an unwanted way, delayed another patient’s blood transfusion,
        and did not properly administer another’s antibiotic. Citing this
        conduct, St. Vincent’s placed Yelling in step one of its four-step dis-
        ciplinary program by giving her a “coaching agreement” in Octo-
        ber 2015. The coaching agreement outlined St. Vincent’s expecta-
        tions of Yelling, but it did not carry with it any suspension or loss
        of pay.
               On November 22, 2015, Yelling accused her coworkers of
        stealing lab orders she printed. Yelling and Calvert got into a heated
        argument over the accusation, and Yelling shouted that the act of
        stealing the lab slips was “wicked.” She warned that the act would
        “curse” the perpetrator’s children, their children’s children, and so
        on. Dubose learned of the incident and ordered the house supervi-
        sor to send Yelling home for the rest of the day. Calvert was not
        suspended.
               When Yelling returned to work the next day, she met with
        Dubose and three other supervisors. Yelling complained that per-
        sonnel issues with non-white CDU staff were “dealt with differ-
        ently” than those with white staff. She filed an EEOC charge that
        same day, alleging race discrimination, hostile work environment,
        and other types of discrimination not at issue in this case (age, sex,
        religion, disability).
               On November 24, and despite Yelling’s complaints, St. Vin-
        cent’s moved Yelling to step two of its disciplinary process by
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        21-10017               Opinion of the Court                        7

        giving her a “verbal agreement.” The verbal agreement cited Yell-
        ing’s outburst toward her coworkers regarding the lab slips. By
        signing it, Yelling agreed to communicate more appropriately with
        her coworkers and not call them names. But the verbal agreement,
        like the coaching agreement, did not require any suspension or loss
        of pay.
               Friction between Yelling and her coworkers continued. On
        January 10, 2016, Yelling had another heated argument with a
        nurse. It began while Yelling was at the nurse station talking to the
        son of a patient in Room 610. The other nurse approached and ac-
        cused Yelling of not taking care of the Room 610 patient, forcing
        that nurse to step in and do Yelling’s job. (The patient was assigned
        to Yelling.) Yelling filed a workplace violence complaint against the
        nurse over the incident, although it involved no violence.
              When investigating her complaint, Yelling’s supervisors
        checked her tracking report. The report showed that Yelling did
        not enter Room 610 any time after 4:01 p.m. Yelling, though, had
        written on the patient’s chart that she observed the patient be-
        tween 7 and 8 p.m. Six CDU employees separately reported that
        they saw Yelling at the nurse station after 4:01 p.m., but not in
        Room 610.
               In February 2016, Yelling met with Dubose, another super-
        visor (who was black), and a human-resources representative to
        discuss the investigation. These supervisors told Yelling about the
        tracking report, about its inconsistency with her written reports,
        and about their belief that she falsified the patient’s record. And
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        8                      Opinion of the Court                 21-10017

        citing the alleged falsification, they fired Yelling effective immedi-
        ately. Yelling professed her innocence, telling them that her tracker
        did not always work, which she said she had told them before. But
        Dubose and her colleagues stuck with their decision to fire Yelling.
               Although Yelling had not progressed through all four steps
        of St. Vincent’s disciplinary process, her supervisors told her falsi-
        fying patient records prompts automatic termination. Before Feb-
        ruary 2016, white CDU staffers Felicia Parrish, Michael Pike, and
        Powell had failed to document making patient rounds or did so in-
        accurately. St. Vincent’s disciplined these employees but did not
        immediately fire them.
               St. Vincent’s later replaced Yelling with a white nurse, and
        this suit followed.
                                       III.

               As noted above, Yelling alleged discrimination and retalia-
        tion under Title VII and § 1981. Her discrimination claims included
        separate claims for hostile work environment and disparate treat-
        ment. We address each claim in turn.
                                       A.

               To succeed on a racially hostile work environment claim un-
        der Title VII or § 1981, Yelling must prove: (1) she belongs to a pro-
        tected class, (2) she experienced unwelcome harassment, (3) the
        harassment was based on her race, (4) the harassment was suffi-
        ciently severe or pervasive to alter the terms of her employment,
        and (5) employer responsibility under a theory of vicarious or
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        21-10017                Opinion of the Court                            9

        direct liability. Smelter v. S. Home Care Servs. Inc., 

, 1283
        n.3, 1284 (11th Cir. 2018) (citing Miller v. Kenworth of Dothan, Inc.,
        

 (11th Cir. 2002)).
                Yelling has certainly provided evidence from which a jury
        could find she satisfied the first two elements. (St. Vincent’s does
        not contend otherwise.) But Yelling has not provided sufficient ev-
        idence from which a jury could conclude the CDU was “permeated
        with ‘discriminatory intimidation, ridicule, and insult, . . . suffi-
        ciently severe or pervasive to alter the conditions of [her] employ-
        ment and create an abusive working environment.’” Harris v. Fork-
        lift Sys., Inc., 

 (1993) (quoting Meritor Sav. Bank, FSB
        v. Vinson, 

 (1986)).
               Showing that harassment is sufficiently severe or pervasive
        requires showing both a subjective and objective component. Men-
        doza v. Borden, Inc., 

 (11th Cir. 1999) (en banc).
        Specifically, “[t]he employee must ‘subjectively perceive’ the har-
        assment as sufficiently severe and pervasive . . . and this subjective
        perception must be objectively reasonable.” 

 (quoting Harris, 

). Yelling has met her burden as to the subjective showing;
        she presented evidence clearly showing she subjectively perceived
        her coworkers’ conduct as severe or pervasive. But she falls short
        as to the objective component.
               “[T]he objective severity of harassment should be judged
        from the perspective of a reasonable person in the plaintiff’s posi-
        tion, considering ‘all the circumstances.’” Oncale v. Sundowner Off-
        shore Servs., Inc., 

 (1998) (quoting Harris, 510 U.S. at
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        10                     Opinion of the Court                21-10017

        23). The Supreme Court, this court, and other Circuits have iden-
        tified a nonexhaustive list of factors “to delineate a minimum level
        of severity or pervasiveness necessary for harassing conduct.” Men-
        doza, 

 (citations omitted). Those factors are (1) the
        conduct’s frequency, (2) its severity, (3) whether it was physically
        threatening or humiliating, rather than “mere offensive utter-
        ance[s],” and (4) whether it unreasonably interfered with the em-
        ployee’s job performance. Allen v. Tyson Foods, Inc., 

 (11th Cir. 1997) (citing Harris, 

).
                We examine the conduct in its context, “not as isolated
        acts.” Mendoza, 

 (citing Allen, 

). And
        this context includes comments and conduct beyond the
        timeframe otherwise actionable. See Nat’l R.R. Passenger Corp. v.
        Morgan, 

 (2002) (holding that the scope of har-
        assment claims includes conduct that occurred outside 42 U.S.C.
        § 2000e-5(e)(1)’s EEOC filing period so long as the last-contributing
        act occurred within that period). We therefore recognize that the
        district court—by declining to consider Wilhite’s statements about
        President Obama that were outside the EEOC charge period—did
        not consider the entire scope of Yelling’s claim. But with a de novo
        review, it makes no difference now whether the district court did
        (or did not) consider all appropriate factors.
              We conclude that Yelling has not presented evidence that
        would allow a reasonable jury to find in her favor. Yelling cites her
        own testimony that St. Vincent’s became “kind of heated” with rac-
        ist comments, or that her coworkers generally made racist
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        21-10017               Opinion of the Court                         11

        comments multiple times. But that testimony lacks the specificity
        necessary to show frequency. Cf. Fernandez v. Trees, Inc., 

 (11th Cir. 2020) (reasoning that employee’s testi-
        mony harassment occurred “every other day” or “nearly every
        day,” which coworkers corroborated, was more specific than
        vague testimony harassment occurred “constantly”); Nitkin v. Main
        Line Health, 

 (3d Cir. 2023) (similar). And Yelling
        has not cited evidence that her coworkers’ conduct was so extreme
        as to make up for the infrequency. See Adams v. Austal, U.S.A.,
        L.L.C., 

 (11th Cir. 2014) (reasoning that
        where harassment is isolated but extreme, an employee may still
        have an actionable claim).
               We begin with the comments about the former President
        and First Lady. We cannot say that all of these comments were
        race-based—as opposed to political or personal disagreement. For
        example, comments that the President was “stupid,” the “worst,”
        or a “piece of shit” are not inherently racial. But even if we consid-
        ered these comments race-based, and even drawing all reasonable
        inferences in Yelling’s favor, we conclude no reasonable jury could
        conclude these comments evince extreme harassment.
               This is true even when considering these comments to-
        gether with other comments—several of which plainly were racist.
        Those comments were only isolated epithets rather than extreme
        harassment. The mere fact that a supervisor (Wilhite) uttered at
        least one does not automatically transform the conduct (still inex-
        cusable) from boorish or crude to extreme. Cf. Adams, 754 F.3d at
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        12                      Opinion of the Court                  21-10017

        1254-55 (considering a supervisor who uttered “n-----” in front of
        plaintiff). And Yelling does not cite any evidence that her cowork-
        ers aimed these or any comments at her personally. To be sure,
        Yelling need not be the intended target of harassment to succeed.
        Walker v. Ford Motor Co., 

, 1359 n.2 (11th Cir. 1982).
        But overhearing offensive comments is less severe or humiliating
        than being the intended target of direct harassment. See Adams, 

; cf. Miller, 

 (reasoning that the plain-
        tiff cited evidence of severe harassment where he “did not suffer
        from overhearing occasional off-color comments,” but instead ex-
        perienced a coworker’s shouting derogatory names at him). Even
        Smelter, on which Yelling relies heavily, drew this distinction. 

 (“[The harassing coworker] did not simply use the
        epithet in [the plaintiff’s] presence; instead, she directed it at [the
        plaintiff] as a means of insulting her in the midst of an argument.”).
                Yelling also points to the Larimore, Calvert, and Laroe com-
        ments about being “confederate flag flyers” or “redneck” gun own-
        ers, which the district court did not view as race-based. She argues
        at length that we must view these statements as racial harassment
        because of the context in which they were made. But the problem
        is that Yelling does not cite evidence adequately illuminating the
        context she says we must consider. She instead relies heavily on
        generalizations about changing “societal norms”—such as recent
        civil rights protests and confederate monument removals—that
        shed no light on what she experienced at St. Vincent’s. The evi-
        dence that Yelling does cite to that end is that she was regularly the
        only black nurse on her shift and that coworkers other than
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        21-10017               Opinion of the Court                         13

        Larimore, Calvert, and Laroe made racist statements about the
        Obamas and patients. But that does not speak to the context of the
        conversations in which the statements were uttered. Nothing cited
        suggests, for example, that a coworker called herself a “confederate
        flag flyer” in conjunction with a racial slur or in the same discussion
        as one.
                We cannot conclude that the comments about the confed-
        erate flag or being gun-carrying rednecks were racial harassment
        since Yelling only offers them in a vacuum. But even if we agreed
        with Yelling that they were race-based harassment, the comments
        still would not—alone or with everything else Yelling offers—be
        sufficient to show a hostile work environment.
               There is no question that Yelling overheard race-based com-
        ments that do not belong in any workplace. But it is a “bedrock
        principle” that not all subjectively offensive language in the work-
        place violates Title VII. Reeves v. C.H. Robinson Worldwide, Inc., 

 (11th Cir. 2010) (en banc). Title VII only prohibits
        harassment that is “so objectively offensive as to alter the ‘condi-
        tions’ of the victim’s employment.” Oncale, 

; see also
        Smelter, 

 n.3, 1284. On this summary judgment rec-
        ord, no reasonable jury could conclude Yelling experienced that.
        Accordingly, the district court did not err in granting summary
        judgment as to Yelling’s hostile work environment claims.
                                       B.

             Next is Yelling’s retaliation claim, which she based on cir-
        cumstantial evidence. This court has “primarily” relied on the
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        14                      Opinion of the Court                    21-10017

        McDonnell Douglas framework to evaluate circumstantial-evidence-
        based employment claims at summary judgment. See Quigg v.
        Thomas Cnty. Sch. Dist., 

 (11th Cir. 2016) (citing
        McDonnell Douglas Corp. v. Green, 

 (1973)); see also Pat-
        terson v. Ga. Pac., LLC, 

 (11th Cir. 2022) (citing
        Gogel v. Kia Motors Mfg. of Ga., Inc., 

 (11th Cir.
        2020) (en banc)) (McDonnell Douglas applicable to Title VII claims);
        Gogel, 

 (same for § 1981 claims). Under that familiar
        framework, a plaintiff must first make out a prima facie case by
        showing (1) she engaged in a statutorily protected activity, (2) she
        experienced an adverse employment action, and (3) causation. Lit-
        tle v. United Tech., Carrier Transicold Div., 

 (11th Cir.
        1997) (citing Coutu v. Martin Cnty. Bd. of Cnty. Cmm’rs, 

 (11th Cir. 1995)). If the plaintiff makes out a prima facie case,
        the employer must then “articulate a legitimate, non-discrimina-
        tory reason or reasons” for its actions. Patterson, 

        (citing Gogel, 

). If the employer does, the plaintiff
        must show that the proffered reasons were pretext and that the em-
        ployer’s real reason was retaliation. Id.; see also Chapman v. AI
        Transp., 

 (11th Cir. 2000).
               Yelling contends that test does not apply here. She contends
        the Supreme Court’s recent decision in Bostock v. Clayton County,
        

 (2020), shows that McDonnell Douglas has no appli-
        cation in “mixed motive Title VII retaliation” claims. Init. Br. at 36
        (arguing that Bostock “made it clearer than ever that where an em-
        ployee can point to any evidence of discrimination or retaliation,
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        21-10017                   Opinion of the Court                                15

        the case must go to a jury” (emphasis added)). 2 She contends the
        appropriate standard for her retaliation claim is akin to the standard
        used for mixed-motive discrimination claims under Title VII. Cf.
        Quigg, 

. 3 She alternatively contends that if McDon-
        nell Douglas does apply, she has shown enough to survive it. Finally,
        she contends that—McDonnell Douglas aside—she has presented


        2 Yelling did not plead a mixed motive in her complaint, and it is an open
        question in this Circuit whether that is necessary. Some unpublished decisions
        suggest pleading mixed-motive causation is not required, see Williams v. Fla.
        Atl. Univ., 

, 999 (11th Cir. 2018); Williams v. Housing Auth. of
        Savannah, Inc., 

, 489 (11th Cir. 2020), while others have sug-
        gested it is, Stevenson v. City of Sunrise, 

, at *7 (11th Cir. Oct.
        15, 2021); Fonte v. Lee Mem’l Health Sys., 

, at *4 (11th Cir. Nov.
        18, 2021); Smith v. Vestavia Hills Bd. of Ed., 

, 130-31 (11th Cir.
        2019). St. Vincent’s did not argue any pleading deficiency, so we assume (with-
        out deciding) that there is none.
        3 A plaintiff can survive summary judgment on a Title VII discrimination
        claim under 42 U.S.C. § 2000e-2(a)(1) by showing that, although an employer
        was motivated by more than one reason to take a particular action, a discrim-
        inatory reason was “a motivating factor” for the adverse employment action.
        Quigg, 

; see also 42 U.S.C. § 2000e-2(a)(1). This theory is known
        as a “motivating factor” or “mixed-motive” discrimination claim. In other
        words, under the mixed-motive standard, when a plaintiff claims that the em-
        ployer acted with mixed motives—and one of those motives was discrimina-
        tory—the plaintiff’s claim can proceed, and the plaintiff is not required to
        prove that the employer’s stated reason for the adverse action was pretextual.
        Id. at 1238-39.
        Importantly, however, Yelling’s Title VII retaliation claim is brought under 42
        U.S.C. § 2000e-3(a), not § 2000e-2(a)(1). Thus, as explained further in this opin-
        ion, the mixed-motive framework does not apply to claims under § 2000e-3(a).
        Yelling’s arguments to the contrary are unpersuasive.
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        16                        Opinion of the Court                       21-10017

        enough evidence to show a convincing mosaic of retaliation. Yell-
        ing is incorrect on each contention.
                                              1.

                Though available for Title VII discrimination claims, it is
        well-established that the mixed-motive framework does not apply
        to Title VII retaliation claims. Univ. of Tex. Sw. Med. Ctr. v. Nassar,
        

 (2013). 4 Rather, to succeed on her retaliation
        claim, Yelling must show that her “protected activity was a but-for
        cause of the alleged adverse action.” 

; see also Comcast Corp.
        v. Nat’l Ass’n of Afr. Am.-Owned Media, 

 (2020)
        (same standard for § 1981 case). The but-for standard asks whether
        “a particular outcome would not have happened ‘but for’ the pur-
        ported cause.” Bostock, 

 (citing Gross v. FBL Fin.
        Servs., Inc., 

 (2009)). “Stated another way, a plain-
        tiff must prove that had she not complained, she would not have
        been fired.” Jefferson v. Sewon Am., Inc., 

 (11th Cir.
        2018).




        4 We use the term “mixed motive” to refer to claims based on the “motivating-
        factor” standard applicable in Title VII discrimination claims. See Quigg, 

 (“An employee can succeed on a mixed-motive claim by showing
        that illegal bias, such as bias based on sex or gender, ‘was a motivating factor
        for’ an adverse employment action, ‘even though other factors also motivated’
        the action.” (quoting 42 U.S.C. § 2000e–2(m))). At any rate, to the extent a
        retaliation claim based on multiple but-for causes is fairly called a “mixed-mo-
        tive” claim, but-for causation still applies. Cf. Gross, 

.
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        21-10017                Opinion of the Court                          17

                As the Supreme Court explained in Nassar, the motivating-
        factor standard under § 2000e-2(m), on the other hand, requires a
        “lessened” showing. 

. That “lessened” showing is
        sufficient for a Title VII discrimination claim, which requires only
        a showing that race “was a motivating factor for the defendant’s
        adverse employment action,” even if some other (lawful) consider-
        ation would have led to the same outcome. Quigg, 

        (citation omitted). In other words, the motivating-factor standard
        only asks whether “illegal bias played a role” even if bias was not a
        necessary link in the causal chain. 

. If it did, the claim can
        proceed.
               But, as the Supreme Court made clear in Nassar, that “less-
        ened” showing has no application to retaliation claims—like Yell-
        ing’s—or any other claim that requires but-for causation. 

 (“Title VII retaliation claims must be proved according to
        traditional principles of but-for causation, not the lessened causa-
        tion test stated in § 2000e–2(m). This requires proof that the unlaw-
        ful retaliation would not have occurred in the absence of the al-
        leged wrongful action or actions of the employer.”).
               Bostock, which involved a Title VII sex discrimination
        claim—not a retaliation claim—did nothing to change this. Bostock
        noted that Title VII bars discrimination “because of” sex, see 42
        U.S.C. § 2000e-2(a)(1); that “because of” incorporates traditional
        but-for causation; and that sometimes “events have multiple but-
        for causes.” Bostock, 

. That means an employer
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        18                        Opinion of the Court                     21-10017

        cannot escape liability by pointing to some factor other than sex it
        considered if sex “was one but-for cause.” 5 

.
               Bostock’s description of but-for causation—and the idea that
        outcomes can have multiple but-for causes—was nothing new.
        The Court articulated the longstanding traditional test for but-for
        causation: “a but-for test directs us to change one thing at a time
        and see if the outcome changes.” 

 That standard is “textbook tort
        law,” Nassar, 

, and reflects “the common under-
        standing” of factual causation, Burrage v. United States, 

 (2014) (illustrating the point with a baseball hypothetical).
               In arguing that Bostock undermines application of McDonnell
        Douglas in the retaliation context, Yelling conflates the concept of
        multiple but-for causes with the concept of mixed motives. If there
        are multiple but-for causes, the removal of any one would change
        the outcome. Each would be a “necessary condition for the out-
        come,” Restatement (Third) of Torts: Phys. & Emot. Harm § 26
        cmt. b (Am. L. Inst. 2010), regardless of whether there was another
        such “necessary condition.” Each could be viewed as “the straw
        that broke the camel’s back.” Burrage, 

; cf. also Bos-
        tock, 140 S. Ct. at 1742 (“If an employer would not have discharged


        5 Bostock also noted that the motivating-factor (i.e., mixed-motive) test was
        alive and well for discrimination claims under § 2000e-2(a)(1), meaning that
        “liability [could] sometimes follow even if sex wasn’t a but-for cause of the
        employer’s challenged decision.” Bostock, 140 S. Ct. at 1739–40. Nevertheless,
        Bostock focused its analysis on the traditional but-for causation standard be-
        cause the motivating-factor test was not at play. Id. at 1740.
USCA11 Case: 21-10017     Document: 46-1      Date Filed: 10/05/2023    Page: 19 of 33




        21-10017               Opinion of the Court                       19

        an employee but for that individual’s sex, the statute’s causation
        standard is met . . . .”).
               With a mixed-motive (or motivating-factor) claim, on the
        other hand, a plaintiff need only show that a protected considera-
        tion contributed in some way to the outcome—even if it ultimately
        changed nothing. Quigg, 

. Consider the Supreme
        Court’s example in Babb v. Wilkie:
              Suppose that a decision-maker is trying to decide
              whether to promote employee A, who is 35 years old,
              or employee B, who is 55. Under the employer’s pol-
              icy, candidates for promotion are first given numerical
              scores based on non-discriminatory factors. Candi-
              dates over the age of 40 are then docked five points,
              and the employee with the highest score is promoted.
              Based on the non-discriminatory factors, employee A
              (the 35-year-old) is given a score of 90, and employee
              B (the 55-year-old) gets a score of 85. But employee B
              is then docked 5 points because of age and thus ends
              up with a final score of 80. The decision-maker looks
              at the candidates’ final scores and, seeing that em-
              ployee A has the higher score, promotes employee A.

        

 (2020). Age bias factored into (or motivated)
        the decision, meaning the decision was not “free from” discrimina-
        tion. 

 (quoting 29 U.S.C. § 633a(a)). But the younger employee
        would have secured the promotion either way, meaning “age was
        not a but-for cause of the decision.” Id. Rather than serving as one
        of several but-for causes, it was no but-for cause at all; it did not
        break the camel’s back. But that did not defeat the claim because
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        20                     Opinion of the Court                 21-10017

        (unlike here) the statute at issue, 29 U.S.C. § 633a(a), did not re-
        quire but-for causation. Rather, the statute required “that person-
        nel actions be untainted by any consideration of age.” Babb, 

.
                Yelling’s case is different. A Title VII retaliation claim re-
        quires “proof that the desire to retaliate was the but-for-cause of
        the challenged employment action.” Nassar, 

; 

 (“Title VII retaliation claims must be proved according to tra-
        ditional principles of but-for causation, not the lessened causation
        test stated in § 2000e–2(m).”). Where but-for causation is required,
        a plaintiff with evidence of only a tagalong “forbidden considera-
        tion” cannot meet her summary judgment burden because she can-
        not show “that the unlawful retaliation would not have occurred
        in the absence of the alleged wrongful action or actions of the em-
        ployer.” Id.
               Here, Yelling alleges multiple but-for causes: she contends
        St. Vincent’s took its adverse action because of unlawful retaliation
        and because of other lawful reasons. But this does not transform
        her claim into a mixed-motive claim, and it does not relieve her of
        her obligation to show an unlawful but-for cause resulted in the al-
        leged wrongful action. Moreover, in the context of the McDonnell
        Douglas framework, it does not relieve Yelling of her obligation to
        respond to St. Vincent’s legitimate reason with a showing of pre-
        text.
              It is true that if Yelling were correct that there were two but-
        for causes—unlawful retaliation and a lawful factor—she could
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        21-10017               Opinion of the Court                         21

        have a claim if the two combined to result in an adverse action that
        would not have occurred without that combination. In that in-
        stance, the retaliation would be a but-for cause because the adverse
        action would not have occurred without it. The fact that a lawful
        consideration was also a necessary factor would not defeat her
        claim. See Bostock, 

.
                But in this situation—and assuming Yelling makes a prima
        facie case—St. Vincent’s can still meet its burden of production by
        showing that the adverse action was based on the lawful consider-
        ation. At this stage, where St. Vincent’s burden is “exceedingly
        light,” Perryman v. Johnson Prods. Co., 

, 1142 (11th Cir.
        1983), all St. Vincent’s must do is produce evidence that it had a
        legitimate reason for its decision. “The defendant need not per-
        suade the court that it was actually motivated by the proffered rea-
        sons. It is sufficient if the defendant’s evidence raises a genuine is-
        sue of fact as to whether it discriminated against the plaintiff.” Tex.
        Dep’t of Cmty. Affs. v. Burdine, 

, 254–55 (1981). Thus, by
        articulating a legitimate reason—rather than remaining “silent in
        the face of the presumption” that follows a prima facie showing—
        St. Vincent’s meets its burden, leaving Yelling to show that retalia-
        tion was a but-for cause of the adverse action. 

. “Im-
        portantly, throughout this entire process, the ultimate burden of
        persuasion remains on the employee.” Gogel, 

        (quoting Sims v. MVM, Inc., 

 (11th Cir. 2013)). In
        short, nothing about Bostock is inconsistent with applying McDon-
        nell Douglas to claims requiring but-for causation—even if a plaintiff
        asserts multiple but-for causes. The district court therefore did not
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        22                     Opinion of the Court                  21-10017

        err in applying it. And as we explain next, the district court did not
        err in concluding that Yelling could not succeed under that frame-
        work.
                                          2.

               Below, Yelling proffered four adverse employment actions:
        (1) the drug test and related suspension, (2) progressive discipline
        by the coaching and verbal agreement, (3) Dubose’s not always
        choosing her as a relief charge nurse, and (4) her firing. The district
        court held that the first three did not qualify as “adverse employ-
        ment actions.” See Monaghan v. Worldpay US, Inc., 

        (11th Cir. 2020) (holding that in the retaliation context, an adverse
        action is one that “well might have dissuaded a reasonable worker
        from making or supporting a charge of discrimination” (quoting
        Burlington N. & Santa Fe Ry. Co. v. White, 

 (2006))).
        As for Yelling’s firing, the court applied McDonnell Douglas. It rea-
        soned that Yelling did not show but-for causation because there
        was no evidence that St. Vincent’s justification—falsification of pa-
        tient records—was pretextual.
                 We need not address whether the district court erred in
        holding that the first three events were not adverse actions. Even
        if all the events qualify, Yelling has not shown retaliatory intent was
        a but-for cause behind any of them.
               First, assuming Yelling made out a prima facie case that the
        drug test and suspension were retaliatory, St. Vincent’s satisfied its
        light burden of identifying a nonretaliatory reason for its actions:
        three witnesses reported that Yelling left the CDU without
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        21-10017                Opinion of the Court                          23

        explanation and looked under the influence when she returned. See
        Chapman, 

. The question, then, is whether Yelling
        has pointed to evidence sufficient to allow a reasonable inference
        of pretext and that her protected conduct was a but-for cause. She
        has not.
               Yelling cites the short time between her June 2015 com-
        plaints of racism and the subsequent drug test, but timing alone is
        not enough to show pretext. See Gogel, 

 n.15. In
        short, Yelling has not rebutted St. Vincent’s justification head on or
        plausibly suggested retaliation was the reason for the drug test and
        suspension. 

.
                Second, assuming Yelling made a prima facie showing as to
        St. Vincent’s placing her in progressive discipline, she has again not
        shown pretext. St. Vincent’s offered justifications that could moti-
        vate a reasonable employer: that Yelling ignored doctors’ orders
        and made a patient uncomfortable by praying with her in an un-
        wanted manner. Yelling contends she had good reasons for these
        actions. But it is not enough to quibble with St. Vincent’s reasons.
        

 (“An employer ‘may fire an employee for a good rea-
        son, a bad reason, a reason based on erroneous facts, or for no rea-
        son at all, as long as its action is not for a discriminatory [or retali-
        atory] reason.’” (alteration in original) (quoting Damon v. Fleming
        Supermarkets of Fla., Inc., 

, 1363 n.3 (11th Cir. 1999)));
        Elrod v. Sears, Robuck & Co., 

, 1470 (11th Cir. 1991).
        And Yelling has not shown that but for her protected conduct she
        would not have faced the same outcome.
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        24                        Opinion of the Court                     21-10017

               Yelling points to no specific evidence to support her claim as
        to the relief charge nurse assignments. So she has made no prima
        facie case as to this proffered adverse action.
                That leaves the fourth proffered action—Yelling’s firing.
        Like the drug test, the adverse action occurred a short time (about
        two months) after Yelling complained of racism and filed an EEOC
        complaint. But St. Vincent’s cited its belief, based on Yelling’s track-
        ing report and six witnesses, that Yelling falsified the Room 610 pa-
        tient’s treatment information. And Yelling does not rebut that ex-
        planation head on. Instead, citing how she told her supervisors her
        tracker sometimes malfunctioned, her argument boils down to a
        mere disagreement with the proffered explanation.
               That is where Yelling’s retaliatory-firing claim fails—she
        cites no evidence beyond mere temporal proximity indicating re-
        taliatory intent. Her theory is that once she first reported racist
        comments in June, St. Vincent’s began building a case against her—
        pointing to the drug test, her coworkers’ complaints about her con-
        duct, and the coaching and verbal agreements. While this court has
        reasoned before that intensive monitoring or harassment by super-
        visors can suggest pretext, 6 the evidence here does not allow an in-
        ference that St. Vincent’s deliberately searched for a fabricated rea-
        son to fire Yelling.


        6 See Hairston v. Gainesville Sun Pub. Co., 

 (11th Cir. 1993);
        Weaver v. Casa Gallardo, Inc., 

 (11th Cir. 1991), super-
        seded on other grounds as stated in Munoz v. Oceanside Resorts, Inc., 

 (11th Cir. 2000).
USCA11 Case: 21-10017      Document: 46-1       Date Filed: 10/05/2023       Page: 25 of 33




        21-10017                Opinion of the Court                           25

              In short, then, Yelling cannot survive summary judgment
        under the McDonnell Douglas framework.
                                           3.

                Yelling alternatively argues that her retaliation claims sur-
        vive under a “broader” convincing mosaic analysis. As she correctly
        notes, plaintiffs relying on circumstantial evidence can always sur-
        vive summary judgment if “circumstantial evidence raises a rea-
        sonable inference that the employer discriminated.” Smith v. Lock-
        heed-Martin Corp., 

 (11th Cir. 2011) (explaining
        that McDonnell Douglas is not “the sine qua non” for employee plain-
        tiffs).
                This court has used the phrase “convincing mosaic” simply
        to recognize that courts must consider the totality of a plaintiff’s
        circumstantial evidence on summary judgment. See 

 That entire
        evidentiary picture may include, “among other things,” (1) suspi-
        cious timing or ambiguous statements, (2) systematically better
        treatment of similarly situated employees, and (3) pretext. Lewis v.
        City of Union City, 

 (11th Cir. 2019) (citing Silver-
        man v. Bd. of Educ. of City of Chi., 

 (7th Cir. 2011),
        overruled by Ortiz v. Werner Enters., Inc., 

 (7th Cir. 2016)).
        “Convincing mosaic,” however, is not a “legal test of any kind.”
        Ortiz, 

. At the end of the day, a retaliation plain-
        tiff’s “mosaic” of evidence must still be enough to allow a reasona-
        ble jury to infer but-for causation. Cf. Bailey v. Metro Ambulance
        Servs., Inc., 

, 1273-74 & n.2, 1277-81 (11th Cir. 2021).
        Yelling’s evidence is insufficient to allow that inference.
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        26                        Opinion of the Court                       21-10017

                                           C.

               Last is Yelling’s disparate-treatment claim. Yelling cites no
        direct evidence of intentional race discrimination. So to survive
        summary judgment, she had to point to sufficient circumstantial
        evidence of discriminatory intent. See EEOC v. Joe’s Stone Crabs, Inc.,
        

 (11th Cir. 2002).
                Yelling proffered the same four adverse actions for her dis-
        crimination claim as for her retaliation claim. We need only ad-
        dress Yelling’s firing, which is indisputably an adverse employment
        action. The district court held that the drug test, progressive disci-
        pline, and not being assigned as a relief charge nurse did not qualify
        as adverse actions for purposes of a discrimination claim. Yelling
        did not develop any detailed argument on appeal on why that was
        error, and she thus abandoned any claim challenging those three
        actions as racially discriminatory.7 See NLRB v. McClain of Ga., Inc.,
        

 (11th Cir. 1998).
              As to her firing, Yelling argues that she presented a mixed-
        motive race discrimination claim and that the district court erred
        by applying McDonnell Douglas’s framework instead of Quigg’s
        mixed-motive standard. But even applying Quigg’s more lenient
        motivating-factor analysis, Yelling’s discrimination claim still fails.

        7 Our conclusion here is not inconsistent with our earlier assumption that Yell-
        ing pointed to qualifying adverse actions for her retaliation claim. Employer
        conduct may be “adverse action” for purposes of a retaliation claim, but not
        under the narrower standard that governs disparate-treatment claims. See
        Crawford v. Carroll, 

 (11th Cir. 2008).
USCA11 Case: 21-10017         Document: 46-1         Date Filed: 10/05/2023          Page: 27 of 33




        21-10017                   Opinion of the Court                                 27

        She cites no evidence by which a reasonable jury could conclude
        that race at least “played a role” in her firing.8 Quigg, 

. Yelling relies on the same evidence she cites to support her
        hostile work environment claim, namely that some people made
        racist comments about the Obamas and patients, St. Vincent’s in-
        action on Yelling’s complaints, and Dubose’s “quota.” That evi-
        dence does not remotely suggest St. Vincent’s decisionmakers—
        one of whom was black—considered race when firing Yelling based
        on the tracking report. Nor does it suggest Yelling’s race motivated
        any of the six witnesses who reported seeing her at the nurse sta-
        tion instead of Room 610. She says these were biased witnesses
        who made the racist comments discussed earlier, but she cites no
        evidence to support that.
               Yelling also points to white staffers Felicia Parrish, Pike, and
        Powell, whom St. Vincent’s did not fire for misconduct. But St.
        Vincent’s disciplined them for mere negligent conduct—for not
        documenting patient-care information accurately or at all. Yelling,
        in contrast, allegedly committed a more severe intentional of-
        fense—falsifying patient information. St. Vincent’s treatment of
        these three, therefore, does not support a reasonable inference that
        race played a role in Yelling’s terminations.



        8 To the extent Yelling alternatively says the district court erred in its applica-
        tion of McDonnell Douglas (assuming a plaintiff can even argue both McDonnell
        Douglas and Quigg at the same time), she could not succeed under a true-mo-
        tive theory for the same reason.
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        28                  Opinion of the Court              21-10017

              The district court did not err by granting summary judg-
        ment in St. Vincent’s favor on the discrimination claim.
                                   IV.

             The order granting summary judgment for St. Vincent’s is
        AFFIRMED.
USCA11 Case: 21-10017      Document: 46-1       Date Filed: 10/05/2023      Page: 29 of 33




        21-10017               BRASHER, J., Concurring                         1

        BRASHER, Circuit Judge, concurring:
               I concur in the Court’s opinion. I write separately to discuss
        the First Amendment implications of Ms. Yelling’s request that we
        hold her employer liable under Title VII for failing to censor her
        co-workers’ speech. To be clear, a private hospital can (and proba-
        bly should) discourage its nurses from disparaging politicians and
        discussing divisive social issues in the hallway. But this case is ulti-
        mately about whether Title VII requires employers to adopt that
        kind of policy.
               As many judges have noted, a Title VII hostile work envi-
        ronment claim is “unusual.” Elvig v. Calvin Presbyterian Church, 

 (9th Cir. 2005) (Fletcher, J., concurring). Title VII bars
        discriminatory treatment in the terms, conditions, or privileges of
        employment. But a harassment claim isn’t based on “inequality in
        hiring, firing, promotions, or duties;” instead, it holds an employer
        liable because of “abusive behavior by [a plaintiff’s] coworkers in
        the workplace.” 

 Because an employer’s liability for harassment
        sometimes turns on an employee’s speech—what they said, how
        often they said it, and what they meant by it—avoiding liability for
        harassment requires an employer to prohibit certain kinds of
        speech in its workplace. See Reeves v. C.H. Robinson Worldwide, Inc.,
        

 (11th Cir. 2010) (en banc).
               Although a private employer can adopt a speech code if it
        wants, the government usually cannot force people to speak in a
        particular way. See R.A.V. v. City of St. Paul, 

 (1992).
        For this reason, Title VII harassment law has always had an uneasy
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        2                       Opinion of the Court                  21-10017

        coexistence with the First Amendment. The government can pe-
        nalize speech when that speech is merely incidental to tortious con-
        duct. See Sorrell v. IMS Health Inc., 

, 567 (2011). And
        nonexpressive conduct is often the root of a workplace harassment
        claim. Id. But “[w]here pure expression is involved, Title VII steers
        into the territory of the First Amendment.” DeAngelis v. El Paso
        Mun. Police Officers Ass’n, 

 (5th Cir. 1995). After all,
        when a plaintiff brings a Title VII “harassment claim[] founded
        solely on verbal insults” or other speech, she is necessarily asking a
        court to impose “content-based, viewpoint-discriminatory re-
        strictions on speech,” 

 at 596–97, and these kinds of restrictions
        are subject to strict judicial scrutiny. Reed v. Town of Gilbert, Ariz.,
        

 (2015).
               To be clear, not every application of harassment law raises
        free speech concerns. As I’ve already noted, the government can
        regulate non-expressive conduct, even if doing so has an incidental
        effect on speech. The First Amendment also “permit[s] restrictions
        upon the content of speech in a few limited areas.” United States v.
        Stevens, 

 (2010). Most relevant to workplace har-
        assment, the government may ban: (1) obscenity, Miller v. Califor-
        nia, 

 (1973), (2) “true threats” of violence, Virginia v.
        Black, 

 (2003), and (3) “fighting words”— “those
        personally abusive epithets which, when addressed to the ordinary
        citizen, are, as a matter of common knowledge, inherently likely to
        provoke violent reaction,” Cohen v. California, 

        (1971).
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        21-10017               BRASHER, J., Concurring                        3

              Turning to the facts of this case, Ms. Yelling’s hostile work
        environment claim is based on pure speech. The Court’s opinion
        fulsomely catalogues the boorish comments that Ms. Yelling over-
        heard. No one would confuse Ms. Yelling’s co-workers with Mar-
        cus Cicero or Henry Clay. But the question remains: how should
        we assess this claim in light of the First Amendment?
                The EEOC—which filed a thoughtful amicus brief in sup-
        port of Yelling’s position—says we should disregard any free-
        speech implications. Its position at oral argument, which is con-
        trary to decades of precedent, was that the First Amendment has
        no role to play in tort litigation between private parties. That’s the
        wrong answer. A court cannot enforce a law in a dispute between
        private parties if doing so requires it to “impose invalid restrictions
        on [a person’s] constitutional freedoms of speech and press.” New
        York Times Co. v. Sullivan, 

 (1964); e.g., Snyder v.
        Phelps, 

 (2011) (noting “[t]he Free Speech Clause
        of the First Amendment . . . can serve as a defense in state tort
        suits); Hustler Mag., Inc. v. Falwell, 

, 50–51 (1988) (same).
               For my part, I don’t think we can ignore the tension between
        the First Amendment and Title VII harassment law. Instead, I think
        the objective prong of our hostile-work-environment standard
        must be applied consistent with First Amendment principles. That
        means that the closer objectionable workplace speech is to conduct
        or to traditionally unprotected areas of speech, the more leeway a
        court should have to find an objectively hostile work environment.
        But the closer objectionable speech comes to the heart of the First
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        4                      Opinion of the Court                  21-10017

        Amendment, the more reluctant a court should be to impose tort
        liability because of it.
                Our harassment law already draws many lines consistent
        with the First Amendment. Consider our conclusion that a super-
        visor’s objectionable comments are objectively more severe than a
        co-worker’s. The reason is that a supervisor’s objectionable com-
        ments carry an implicit threat of illegal conduct—discriminatory
        treatment in promotion or termination—and a co-worker’s may
        not. See Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist., 

,
        710 (9th Cir. 2010) (noting a supervisor’s “advocacy of discrimina-
        tory ideas can connote an implicit threat of discriminatory treat-
        ment”). Likewise, we have recognized that overhearing an offen-
        sive comment is less severe than being the target of that comment.
        See e.g., Adams v. Austal, U.S.A., L.L.C., 

, 1250–57 (11th
        Cir. 2014) (finding direct racist comments to be inherently more
        harassing than indirect ones). That line makes sense, in part, be-
        cause the latter is much closer to “fighting words” than the former.
        Direct insults do not “seek to disseminate a message to the general
        public, but to intrude upon the targeted [listener], and to do so in
        an especially offensive way.” Frisby v. Schultz, 

        (1988).
               Likewise, I would hold that speech on public matters is in-
        herently less likely to create a hostile work environment than
        speech on private matters. “[W]here matters of purely private sig-
        nificance are at issue, First Amendment protections are often less
        rigorous.” Snyder v. Phelps, 

 (2011). But we give the
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        21-10017               BRASHER, J., Concurring                        5

        highest degree of protection to speech on matters of public con-
        cern—that is, speech that can “be fairly considered as relating to
        any matter of political, social, or other concern to the community.”
        Connick v. Myers, 

 (1983). For this reason, “even
        those commentators who conclude the First Amendment gener-
        ally permits application of harassment laws to workplace speech
        recognize exceptions” for “debate on issues of public concern.” Avis
        Rent A Car Sys., Inc. v. Aguilar, 

, 1141–42 (2000)
        (Thomas, J., dissenting from denial of certiorari) (citing Richard H.
        Fallon, Jr., Sexual Harassment, Content Neutrality, and the First Amend-
        ment Dog That Didn’t Bark, 1994 SUP. CT. REV. 1, 41, 47 (1994)). See
        generally Eugene Volokh, Freedom of Speech and Workplace Harass-
        ment, 39 UCLA L. REV. 1791, 1849 (1992).
               In any event, these principles are one reason I agree with the
        Court that Ms. Yelling’s hostile work environment claim fails as a
        matter of law. As Justice Sotomayor recently reminded us, “First
        Amendment vigilance is especially important when speech is dis-
        turbing, frightening, or painful, because the undesirability of such
        speech will place a heavy thumb in favor of silencing it.” Counter-
        man v. Colorado, 

, 2121-22 (2023) (Sotomayor, J., con-
        curring). I think we should apply the objective element of work-
        place harassment law consistent with that idea.